Published: 17 July 2014
Q: I operate a pub and have applied for a Premises Licence variation to extend my hours. The police have said that they will object to the increase in hours and if the matter were to be determined by the Licensing Sub-Committee the application will (in their view) be refused. However, they have suggested that if I agreed to an ‘operating agreement’ which they have produced then they will not object to the application and it will be granted without a hearing.
A: The Licensing Act 2003 has statutory controls which determine the processes of applying for and having granted variations to existing Premises Licences.
The process requires either the responsible authority and/or ‘others’ to make representations to an application based upon the likelihood of a compromise to one or more of the four licensing objectives. If the Licensing Authority determines a representation to be valid, a hearing must be identified to determine the application, unless all of the parties decide that a hearing is unnecessary.
We have heard about these so called ‘operating agreements’ which appear to provide a green light for the Premises Licence holder to operate the hours requested, but also require that the premise licence holder agrees to a number of conditions, one of which may require that the Premise Licence holder makes a variation application to vary the hours back to the original hours should the premises be sold, or the Premises Licence holder change.
These agreements are totally unenforceable and reflect an attempt to bypass the duly elected local Licensing Committee. In addition, the Licensing Act 2003 requires that the summary of the Premises Licence be displayed and the licence itself be available for inspection by the police and other responsible authorities. The only conditions enforceable are those which are applied to the Premises Licence as conditions. If those conditions are not fulfilled, the police, along with other responsible authorities, may initiate a review of the Premises Licence or prosecute the Premises Licence Holder.
Any ‘side operating agreements’ or ‘contracts’ are unenforceable under the Licensing Act 2003 since they have not been formulated and agreed as a result of the process identified in the Licensing Act 2003 which deals specifically with variation applications. Whilst agreeing to enter into such agreements may appear an attractive alternative to a representation, the Police are required to support their representation with evidence of how the licensing objectives will be undermined. They may suggest conditions which may or may not be agreed with the Licensing Committee. However, the final determination rests with the Licensing Sub-Committee and the process should be adhered to not only by the Premises Licence Holder, but the responsible authority
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